Saundra's Inc. et al v. American States Insurance Company

Filing 18

ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE ORDER. Granting 12 Motion for Protective Order. Signed by Judge Rosanna Malouf Peterson. (SK, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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SAUNDRA’S INC., a Washington
corporation; SAUNDRA WILMA, an
individual; ESTATE OF ALAN D.
WILMA; JOHN ARMSTRONG, a
married man; and DONNA
ARMSTRONG, a married woman

NO: 2:15-CV-68-RMP
ORDER GRANTING STIPULATED
MOTION FOR AGREED
PROTECTIVE ORDER

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Plaintiffs,
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v.
AMERICAN STATES INSURANCE
COMPANY, a foreign insurance
corporation,

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Defendant.
BEFORE THE COURT is the parties’ Stipulated Motion for Agreed

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Protective Order, ECF No. 12. The Court has reviewed the record and is fully

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informed.

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The Court finds good cause to issue the requested Protective Order.
Accordingly, IT IS HEREBY ORDERED:

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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The parties’ Stipulated Motion for Agreed Protective Order, ECF No. 12, is

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GRANTED. The parties shall abide by the following terms which they have

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supplied:

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1. “CONFIDENTIAL” MATERIAL

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a.

Definition of “confidential material”: “Confidential Material”

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means information that the party designating the information as confidential

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reasonably believes to fall within the following definition:

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Proprietary, commercial, or client information, which is defined as:

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i.
“Trade secret,” as set forth in the Washington Trade Secrets
Act, RCW 19.108.010, meaning information, including a formula, pattern,
compilation, program, device, method, technique, policy, manual, or process
that:
(a) Derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

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ii.
Research, development, or commercial information that is of a
highly competitively sensitive nature and that a reasonably prudent business
person in the applicable field would not release to or share with the public in
the ordinary course of business, and the release of which would likely cause
proprietary, competitive, or economic harm.

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b.

Confidential material designated and covered by this agreement:

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Defendant’s claim training documents in effect at the time of the

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adjustment of the loss, which pertain to property insurance claims.
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/ / /
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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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2.

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SCOPE
The protections conferred by this agreement cover not only confidential

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material (as defined above), but also (1) any information copied or extracted from

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confidential material; (2) all copies, excerpts, summaries, or compilations of

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confidential material; and (3) any testimony, conversations, or presentations by

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parties or their counsel that might reveal confidential material.

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However, the protections conferred by this agreement do not cover

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information that is in the public domain or becomes part of the public domain

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through trial or otherwise.

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3.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
3.1 Basic Principles. A receiving party may use confidential material that is

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disclosed or produced by another party or by a non-party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation.

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Confidential material may be disclosed only to the categories of persons and under

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the conditions described in this agreement. Confidential material must be stored

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and maintained by a receiving party at a location and in a secure manner that

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ensures that access is limited to the persons authorized under this agreement.

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3.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the Court or permitted in writing by the designating party, a

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receiving party may disclose any confidential material only to:

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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(a) the receiving party’s counsel of record in this action, as well as

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employees of counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b) the officers, directors, and employees (including in house counsel) of the

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receiving party to whom disclosure is reasonably necessary for this litigation,

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unless the parties agree that a particular document or material produced is for

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Attorney’s Eyes Only and is so designated;

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(c) experts and consultants to whom disclosure is reasonably necessary for
this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A);

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(d) the court, court personnel, and court reporters and their staff;

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(e) copy or imaging services retained by counsel to assist in the duplication

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of confidential material, provided that counsel for the party retaining the copy or

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imaging service instructs the service not to disclose any confidential material to

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third parties and to immediately return all originals and copies of any confidential

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material;

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), unless otherwise agreed by the designating party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits to

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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depositions that reveal confidential material must be separately bound by the Court

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reporter and may not be disclosed to anyone except as permitted under this

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agreement;

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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3.3 Filing Confidential Material. Before filing confidential material or

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discussing or referencing such material in court filings, the filing party shall confer

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with the designating party to determine whether the designating party will remove

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the confidential designation, whether the document can be redacted, or whether a

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motion to seal or stipulation and proposed order is warranted.

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4.

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DESIGNATING PROTECTED MATERIAL
4.1 Exercise of Restraint and Care in Designating Material for

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Protection. Each party or non-party that designates information or items for

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protection under this agreement must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The designating

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party must designate for protection only those parts of material, documents, items,

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or oral or written communications that qualify, so that other portions of the

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material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this agreement.

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made for an

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improper purpose (e.g., to unnecessarily encumber or delay the case development

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process or to impose unnecessary expenses and burdens on other parties) expose

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the designating party to sanctions.

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If it comes to a designating party’s attention that information or items that it

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designated for protection do not qualify for protection, the designating party must

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promptly notify all other parties that it is withdrawing the mistaken designation.

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4.2 Manner and Timing of Designations. Except as otherwise provided in

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this agreement (see, e.g., second paragraph of section 4.2(a) below), or as

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otherwise stipulated or ordered, disclosure of discovery material that qualifies for

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protection under this agreement must be clearly so designated before or when the

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material is disclosed or produced.

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(a) Information in documentary form: (e.g., paper or electronic documents

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and deposition exhibits, but excluding transcripts of depositions or other pretrial or

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trial proceedings), the designating party must affix the word “CONFIDENTIAL”

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to each page that contains confidential material. If only a portion or portions of the

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material on a page qualifies for protection, the producing party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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(b) Testimony given in deposition or in other pretrial or trial proceedings:

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the parties must identify on the record, during the deposition, hearing, or other

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proceeding, all protected testimony, without prejudice to their right to so designate

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other testimony after reviewing the transcript. Any party or non-party may, within

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fifteen days after receiving a deposition transcript, designate portions of the

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transcript, or exhibits thereto, as confidential.

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(c) Other tangible items: the producing party must affix in a prominent place

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on the exterior of the container or containers in which the information or item is

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stored the word “CONFIDENTIAL.” If only a portion or portions of the

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information or item warrant protection, the producing party, to the extent

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practicable, shall identify the protected portion(s).

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4.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the designating party’s right to secure protection under this agreement for such

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material. Upon timely correction of a designation, the receiving party must make

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reasonable efforts to ensure that the material is treated in accordance with the

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provisions of this agreement.

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5.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1 Timing of Challenges. Any party or non-party may challenge a

designation of confidentiality at any time. Unless a prompt challenge to a

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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designating party’s confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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5.2 Meet and Confer. The parties must make every attempt to resolve any

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dispute regarding confidential designations without court involvement. Any

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motion regarding confidential designations or for a protective order must include a

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certification, in the motion or in a declaration or affidavit, that the movant has

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engaged in a good faith meet and confer conference with other affected parties in

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an effort to resolve the dispute without court action. The certification must list the

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date, manner, and participants to the conference. A good faith effort to confer

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requires a face-to-face meeting or a telephone conference.

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5.3 Judicial Intervention. If the parties cannot resolve a challenge without

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court intervention, the designating party may file and serve a motion to retain

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confidentiality within 14 days of the meet and confer conference described in

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paragraph 5.2. If the designating party does not file and serve a motion to retain

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the confidentiality of the documents within 14 days, then it waives the protections

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set forth in this Order with regard to the challenged documents. The burden of

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persuasion in any such motion shall be on the designating party. Frivolous

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the challenging

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party to sanctions. All parties shall continue to maintain the material in question as

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confidential until the Court rules on the challenge.

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6.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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If a party is served with a subpoena or a court order issued in other litigation
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that compels disclosure of any information or items designated in this action as
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“CONFIDENTIAL,” that party must:
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(a) promptly notify the designating party in writing and include a copy of the
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subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to
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issue in the other litigation that some or all of the material covered by the subpoena
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or order is subject to this agreement. Such notification shall include a copy of this
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agreement; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued
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by the designating party whose confidential material may be affected.
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7.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed
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confidential material to any person or in any circumstance not authorized under
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this agreement, the receiving party must immediately (a) notify in writing the
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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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designating party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the protected material, (c) inform the person or persons

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to whom unauthorized disclosures were made of all the terms of this agreement,

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and (d) request that such person or persons execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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8.
INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a producing party gives notice to receiving parties that certain
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inadvertently produced material is subject to a claim of privilege or other
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protection, the obligations of the receiving parties are those set forth in Federal
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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order or agreement that
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provides for production without prior privilege review. Parties shall confer on an
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appropriate non-waiver order under FED. R. EVID. 502.
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NON TERMINATION AND RETURN OF DOCUMENTS

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Within 60 days after the termination of this action, including all appeals,
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each receiving party must return all confidential material to the producing party,
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including all copies, extracts and summaries thereof. Alternatively, the parties
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may agree upon appropriate methods of destruction. Notwithstanding this
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provision, counsel are entitled to retain one archival copy of all documents filed
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with the Court, trial, deposition, and hearing transcripts, correspondence,
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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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deposition and trial exhibits, expert reports, attorney work product, and consultant

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and expert work product, even if such materials contain confidential material.

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The confidentiality obligations imposed by this agreement shall remain in

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effect until a designating party agrees otherwise in writing or a court orders

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otherwise.

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The District Court Clerk is hereby directed to enter this Order and to provide
copies to counsel.
DATED this 9th day of February 2016.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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Exhibit A

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON
SAUNDRA'S, INC. a Washington
corporation; SAUNDRA WILMA, an
individual; the Estate of ALAN D.
WILMA; and JOHN and DONNA
ARMSTRONG, a married couple,

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No. 2:15-cv-00068 RMP
CONFIDENTIALITY AGREEMENT

Plaintiffs,

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vs.
AMERICAN STATES INURANCE
COMPANY, a foreign corporation,

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Defendant.
The following persons have read and understood that they are bound by the
terms of the Stipulated Protective Order in this action:
DATED:______________________.

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______________________________________
Printed Name: __________________________

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ORDER GRANTING STIPULATED MOTION FOR AGREED PROTECTIVE
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